A guardian is a person, or entity, appointed by the court to provide care for an incapacitated adult who can no longer make personal decisions on their own. Generally, an individual becomes incapacitated when they can no longer make reasonable decisions with regards to their own best interests due to a mental or physical condition. The procedure for appointing a guardian of an incapacitated adult is governed by Arizona Revised Statute § 14-5303. The petition must include basic information about who is to be appointed guardian and why appointing a guardian is needed. In addition, a proposed guardian must provide personal information to the court such as any felony convictions or prior times the individual has acted as a guardian.
A guardian can be an individual, such as a child or spouse, although there is no requirement the guardian has to be a family member. Often times however the ward will feel more comfortable letting someone they already know and trust make decisions for them. For these reasons planning for a guardian is an important step in drafting your estate planning documents as priority can be given to a person nominated by a power of attorney over some others that may be appointed. A guardian can also be an entity such as a private fiduciary. A private fiduciary is a person or business that is licensed to act as a guardian and also receives payment to do so. If the ward has limited funds or no one to act as guardian the court can appoint the public fiduciary.
After a petition for appointment is filed by an individual interested in serving as a guardian for the ward, they must then send notice to the ward and other interested individuals. The notice must be personally served on the ward. Other interested individuals may be the ward’s spouse, adult children, parents and anyone else who may be specified by statute. The ward must also be represented by an attorney. This could be an attorney who previously worked with the ward or it could be an attorney appointed by the court. However an alleged incapacitated ward must have representation.
Unlike guardianship of a minor, a proposed ward must have a physician’s report and court investigator appointed to determine what is in the best interest of the ward and make recommendations to the court about the ability of the ward to take care of themselves and the scope of care needed. The investigator will also make recommendations about the environment of the ward and whether they are likely to receive the care they need in their current surroundings or if other measures should be taken. In some cases the court may appoint a temporary guardian for a limited purpose or period of time. Sometimes this is done until a final determination is made as to the permanent guardian.
Once a guardian is appointed they have a duty to make decisions in the best interest of the ward. Not only does this include medical care and advice but it also pertains to education, social activities and environment. A guarding has a duty to always make sure the ward is living in the least restrictive environment and can still remain safe. A guardian must also submit written reports to the court on a yearly basis regarding the status and condition of the ward as well as a current physician’s report.
Appointment of a guardian can be avoided in certain circumstances, given proper planning and preparation. Moreover, not all cases require appointment of a guardian. If you, or someone you know needs help establishing a guardianship for a minor, contact one of our experienced attorneys today for a consultation to determine if a guardianship is the right choice and to discuss the possibility of alternatives that may better suit your particular situation.